Torts Outline I. Intentional Torts
Intro [37-40]
I. Intentional Fault: Intentional Torts
Generally, elements are
1. intent
2. impact
3. harm
A. The Prima Facie Case
1. Battery [40-52]
Elements
1) intent
for purpose of causing the harm, or
substantial certainty that harm will follow
e.g. Garratt boy pulled chair out from under old lady
transferred intent
a. fully liable even if
1. meant to do a different harm
2. meant to hit another person
e.g. Hall v. McBryde boy shot at car did not mean to hit victim
b. extended liability: liable for all damages caused, not merely those intended
or foreseeable
2) impact = contact
need bodily contact
can be particulate
e.g. Leichtman talk show host blew smoke in antismoking advocate’s face
awareness not req’d
e.g. Cohen male nurse touched religious Caesarean patient
3) harm
offensiveness – reasonable person test
(emotional distress is “parasitic” (flows from) another tort - recoverable)
other examples:
Snyder v. Turk surgeon grabs scrub nurse
When minor commits a tort – he is liable (e.g. Garratt, Hall)
2. Assault [59-65]
Elements
1) intent – substantial certainty, transferred intent apply
2) apprehension
of imminent “no significant delay” harm or offense to oneself
fear is not required but must be aware (not sleeping or baby) (v. battery)
apparent ability to harm is sufficient (no actual knowledge req’d)
3) harm
words alone do not suffice
e.g. Cullison girl’s family went to his trailer with guns and threatened to “jump astraddle”
e.g. Koffman football player tackled by huge coach – no warning à no assault
3. False Imprisonment [65-68]
Elements
1) intent (no malice req’d)
2) impact = confinement
restricted to limited area w/o knowledge of reasonable means of escape
“actual, physical constraint” not req’d
· threat of harm
· implicit/explicit barrier
· false assertion of legal authority
e.g. McCann v. Wal-Mart mistook family for shoplifters and said the police were coming
3) harm
conscious of harm or harmed by it
4. Intentional Infliction of Emotional Distress [561-569]
Elements
1) intent
intended to cause severe distress or at least reckless in risking it
2) impact = infliction
conduct of defendant was “extreme and outrageous”
not just insult, but outrage
factors
· severity (repeated/extended) e.g. GTE crazy employer
· power dynamic
e.g. Taylor “jungle bunny” inferior officer
· vulnerability of plaintiff
e.g. Winkler fiduciary relationship b/t pastor and unstable volunteer
3) harm
actually causes severe distress
outrageous conduct directed at A does not give B a cause of action
e.g. Homer v. Long man sues therapist for seducing wife à no claim
liable for presence of family member regardless of actual harm
non-family member requires presence + actual harm
e.g. Bettis hostage’s immediate, not extended, family recovers
B. Defenses
1. Consent [91-100]
a. Types of Consent
1) express
2) apparent - e.g. taking sweater off
reasonable person standard - subjective state of
mind doesn’t matter so long as reasonable defendant believe she consented
3) implied by law – unconscious, etc.
b. When consent is not a defense
1) beyond the scope of consent
consent only “to the particular conduct, or substantially the same conduct”
e.g. Ashcraft only consented to family blood transfusions
e.g. consent limited to certain drugs
e.g. Doe v. Johnson he knew he had AIDS, she didn’t consent to that type of sex!
2) obtained by fraud, duress
3) P mistaken to essential nature/conseq. (informed consent)
e.g. thyroid patient didn’t know what it would entail
but Kennedy v. Parrott Dr. performed extra procedure not liable, don’t want to discourage Drs. from doing what’s best
4) incapacity – dn understand nature of connection b/t actions
and consequences
child, mentally disabled, drunk
def must know of incapacity (e.g. Reavis D didn’t know about her history of being abused)
2. Privilege
a. Defense (against plaintiff’s conduct) [82-89]
after plaintiff proves prima facie case of int’l tort
(1) Self-Defense
1. apparent necessity, reasonable defendant felt it was req’d
2. amt of force used must be commensurate, reasonably necessary to prevent harm
3. retreat is not req’d, usually…
4. retaliation is not OK
5. provocation is not a good enough reason
6. (defense of third parties is pretty much allowed)
(2) Arrest/Detention - allowed to detain a person who might have tortiously taken property, but at shopkeeper’s peril – if not liable could be liable for false imprisonment
e.g. A&P v. Paul thought guy stole tick spray and tried to detain him for police, but he didn’t have probable cause – didn’t even check the shelf
(3) Defense of Property
no privilege to use physical force to protect property
“value of life and limb” outweighs protection of property
e.g. Katko shotgun trap hit intruder – no defense
e.g. Brown v. Martinez guy shot boy watermelon stealer to scare him – no defense
recapturing chattels – ok in hot pursuit, not a week later
once in possession – they can use force against you
e.g. cannot use force to repo car
can enter another’s prop. to get your stuff
b. Necessity [100-109]
(1) Public
not based on P’s conduct but policy reasons
prevent imminent public disaster
if benefits > costs, action is needed, reasonable response
e.g. Surocco blew up house to stop fire from spreading
gov’t should compensate innocent third party
individuals shouldn’t have to bear public burdens alone
e.g. Wegner damage of prop during drug bust
(2) Private
Private necessity > defense of property à not a trespass
e.g. Ploof v. Putnam not a trespass to moor sloop to defendant’s prop b/c it was necessary in storm
only releases liability for trespass, still have to pay!
e.g. Vincent v. Lake Erie Trans. cargo ship remained docked b/c of storm, but they should pay for damages.
c. Other defenses
police can enter land to search/arrest
but not invite the media!
public accommodation laws
cannot exclude people from a public utility
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Last updated 12/17 5PM
Torts Outline Jessica Lau II. Unintentional Fault: Negligence
II. Unintentional Fault: Negligence
Imposes fault for results not intended by D
fault for failing to perform some legal duty
A. The Prima Facie Case
Elements of Negligence
1) duty of care “negligence “
2) breach of duty
3) causation
a) actual
b) proximate
4) damages/injury
Reasons for cost shifting
1) deterrence – set optimal level of risk
2) compensation – injured can recover
1. Duty of Care - matter of law/for judge
- Reasonable Care [111-133]
“The duty owed by all people generally…to exercise the care exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others” [114]
There is but one standard: reasonable care. The care is greater when danger is greater.
e.g. Stewart no extraordinary care for use of dangerous gasoline
(but sometimes courts don’t follow this)
“sudden emergency” instruction is repetitious, may cause prejudice
same std. but emergency = factor
e.g. Wilson car backs up, I panicked and backed up too
Children held to standard of reasonable child of like age/intelligence/experience
Exception: when child engages in dangerous activity à held to adult std. of care
Discourages kids from doing dangerous things
Protect public from hazards
Usu. motorized e.g. Robinson v. Lindsay snowmobiling
but e.g. Hudson-Connor driving a golf cart ≠ adult activity à neither is entrustment
very young = incapable of negligence
Mental disability/low intelligence – no allowance
Public policy reasons
Allocate losses, incentive for families to control them, “are to live in the world”
Easy to fake, difficult to assess
e.g. Creasy v. Rusk Alzheimer’s patient hit nurse liable
but medical cond’n is different – that would be strict liability cause everyone has cond’ns
e.g. Roman v. Gobbo man w/bypass drove and had heart attack not liable
Special knowledge/skills – held to higher standard
e.g. Hill expert earth scraper should be more careful and not kill his sister
Phys. impairment – compare to people with similar infirmity
e.g. Shepherd cataract woman who tripped
Drunks – held to std. of sobers
Expected to have memory of reasonable person
- Negligence Per Se [141-147]
Statutory negligence if…
1. harm of the kind statute was intended to protect
2. plaintiff was the target of the statute’s protection
violation of statute = breach of duty, usu. no excuses
legislatures can explicitly est. duties of care sometimes
e.g. Wright v. Brown statute to quarantine rabid dogs, released early
define protected class - gen. public, not just ppl bitten by dogs
e.g. Haver parked on wrong side of street, hit kid
no negligence per se b/c statute intended to promote orderly traffic, not protect kid
excusable violations incl.
(a) actor’s incapacity
(b) neither knows/should no of the occasion for compliance
(c) unable after reasonable diligence/care to comply
(d) emergency not due to his own misconduct
(e) compliance involves greater risk of harm to actor/others
e.g. Impson passing near intersection not excused for lack of care
2. Breach of Duty – matter of fact/for jury
a. Unreasonable Risk [150-165]
duty is breached if you expose others to unreasonable risk of harm “balancing test”
unreasonable if benefits < risk
risk-utility analysis/Hand Formula: negligent if B < PL
Burden of adequate precautions < (Probability of harm) (magnitude of Loss)
e.g. U.S. v. Carroll Towing Hand: no bargee creates unreasonable risk
e.g. Indiana Cons. Ins. V. Mathew saving his own life > dragging lawnmower out of garage
e.g. Stinett Dr. hires roof worker, dn have to provide abs. safe place to work (low P)
e.g. Lee reasonable care = call help for choking – not so much to ask! (low B)
e.g. Fintzi too hard to avoid slipping at camp (high B)
e.g. Bernier teens drove into utility pole. Elec. co. knew about this preventable riskà breach
e.g. Giant fleeing shoplifters ≠ unreasonable risk of harm to customers (low P)
e.g. Parsons garbage collector scared horse. Imp’t social value of public utility (high B)
b. Proof of Breach [169-177; 185-187]
preponderance of evidence: >50% chance (more probable than not)
e.g. Santiago must provide sufficient evidence that school bus driver was negligent in collision
even though it may be hard to prove
e.g. Upchurch though driver admitted to drinking, reasonable that she veered b/c of animal credibility of witnesses = question for jury
confirmatory bias: too much credit to evidence that supports prior beliefs
hindsight bias: overestimate foreseeability once event has already occured
Circumstantial evidence is important
e.g. Upchurch yaw marks
e.g. Forsyth skidding indicates high speed before car crash
e.g. T.J. Hooper not customary to have radio, barge liable anyway
LH: would’ve been easy to get it; B < PL
Sometimes courts have to say what is required
(Posner commentary: custom is accurate std. if negligence happens to customer b/c they bear risk and cycle it back into enterprise, here customer à custom should apply)
c. Res Ipsa Loquitur [187-193]
can satisfy burden of proof (preponderance of evidence), but P still has burden
(instruction can create a “presumption” of negligence – shift burden)
proving unspecified negligence “the thing speaks itself” “presumptive negligence”
injury itself is sufficient to est. breach
e.g. Byrne (original case) barrel of flour falling à must be negligence!
But e.g. Valley fire in warehouse could’ve been caused by anything
Elements
1) event does not normally occur w/o negligence
2) exclusive control of D – D had a duty to guard against it
3) P/others not negligent and did not contribute to injuries – no other reason
3. Causation
a. Causation in Fact [211-224]
“actual cause” est. by but-for test:
P would not have been injured but for D’s conduct
e.g. Salinetro unknowingly pregnant, Dr. gave her x-ray and killed fetus
but for asking if she was pregnant, baby would STILL be killed à not liable
Liability of Two or More Persons
a. Concurrent liability
would not have occurred but for concurrence of acts à both are actual causes
b. Jointly engaged tortfeasors e.g. drag racing
both liable even though only one person caused injury
one indivisible injury: joint and several liability for all wrongdoers for entire damages
e.g. Landers two companies let their saltwater into someone’s lake, killed fish
many courts abolished this b/c P can only cover up to 100%
deep pockets problem
c. successive tortfeasors
each liable for portion of damage he caused, Ds burden of allocation
e.g. Dillon but for grabbing electrical wire, boy would’ve fallen to his death
elec. co only liable for conscious suffering from shock
d. substantial factor test
if D’s action contributed substantially à he’s deemed to have caused it
e.g. Anderson though other fires, train’s fire was alone sufficient to cause injury à both liable
fails but-for test
e. alternative liability
e.g. Summers v. Tice several bird shooters
not clear which one caused ità shift burden of going fwd to each D to absolve
D’s are in better position to sort this out, don’t put burden on P
But-for doesn’t work cause they don’t know
b. Proximate Cause [234-256]
“legal cause” – judged by foreseeability
policy reasons (fair to hold D liable?)
1) whether harm caused is a reasonably foreseeable risk
2) whether P is in class of people foreseeably harmed
e.g. Medcalf attack is not foreseeable result of not fixing buzzer system
e.g. Abrams not foreseeable that not sending ambulance for pregnant woman à crash
not liable if outside “scope of risk”
e.g. Palsgraf pushed man with a pkg onto train, contained fireworks à woman hurt
Cardozo: applies foreseeability test as limit on liability
Andrews dissent: divides negligence from proximate cause
Rescuers are allowed to recover from the D whose negligence prompts rescue
“danger invites rescue” – reasonable person should have foreseen rescuer’s attempts/harm to him
Assessing the Scope of Risk
a. Manner in which harm occurs is different – can still be foreseeable
e.g. Hughes boys dropped lantern into unguarded manhole, explosion foreseeable
e.g. Doughty foreseeable that asbestos cover in vat, but explosion not foreseeable